[Last] Monday, President Barack Obama announced the nomination of Elena Kagan to the position of Associate Justice on the United States (US) Supreme Court. Based on a review of the rather meager writings and public statements by Kagan, a picture still emerges of a liberal activist whose sympathies for foreign law raise serious questions about how she would follow the US Constitution if she is confirmed.
During her Senate confirmation hearings last year to become US Solicitor General (the attorney that represents the US government before the Supreme Court), Kagan was asked about her view of the role of consulting foreign law in statutory interpretation. Kagan responded by saying, “At least some members of the Court find foreign law relevant in at least some contexts. When this is the case, I think the Solicitor General’s office should offer reasonable foreign law arguments to attract these Justices’ support for the positions that the office is taking.”
As the first female Dean of her alma mater, Harvard Law School, Kagan played a lead role in revamping the first year curriculum that made international/comparative law mandatory, which is especially noteworthy given that the law school no longer requires students to take a constitutional law class. In her review of the new curriculum, Kagan defended the new requirement by writing, “The courses in international and comparative law are opening up new questions and possibilities, showing choices made by different societies and challenges that arise from globalization, while also helping every student to locate American law in the larger map of laws, politics, and histories across the world.”
During Kagan’s time as the head of Harvard Law, the former President of the Supreme Court of Israel, Aharon Barak, was honored with a major award. In her remarks for the occasion, Kagan called Barak, “my judicial hero. He is the judge who has best advanced democracy, human rights, the rule of law, and justice.” Barak is known amongst both conservative and liberal legal minds as one of the most activist judges on record. Even the Havard Law Record described Barak in this manner: “A noted supporter of an activist judiciary, Barak advances a dynamic view of law and justice, intertwining both with the realities of life and government.”
Justice Richard Goldstone, a liberal best known as the chief prosecutor of the United Nations International Criminal Tribunals for Rwanda and the former Yugoslavia, has stated that Barak “is unashamedly what, in U.S. terms, would be regarded as an ‘activist judge.’” Judge Richard Posner, a well-known federal appeals court judge and legal commentator, in his review of Barak’s book, Enlightened Despot, described the Israeli judge’s judicial view as follows: “What Barak created out of whole cloth was a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.” Posner went on to warn that, “He takes for granted that judges have inherent authority to override statutes. Such an approach can accurately be described as usurpative.”
Kagan’s nomination will go before the US Senate for confirmation hearings this summer.
